Clarification on Disabled Child Under FMLA Provided by DOL


A new interpretation letter from the U.S. Department of Labor has clarified when employees who care for a disabled child will qualify for a Family and Medical Leave Act leave.*

Under the FMLA, qualified employees may take up to twelve weeks of unpaid leave during a twelve-month period to care for a son or daughter with a serious health condition.  The FMLA defines a "son or daughter" as a biological or adopted child, a stepchild, a foster child, or a legal ward who is either under the age of eighteen, or eighteen years of age or older and "incapable of self-care because of a mental or physical disability."  Some of the DOL's previous interpretation letters suggested that an adult son or daughter must have become disabled before the age of eighteen in order for a parent to qualify for FMLA leave to care for the disabled child in adulthood.

The DOL's new interpretation letter clarifies that the age a son or daughter becomes disabled is not relevant when determining a parent's entitlement to FMLA leave.  A parent who otherwise satisfies the FMLA's eligibility requirements will be entitled to FMLA leave to care for an adult son or daughter who (1) has a disability as defined by the ADA; (2) is incapable of "self-care," as defined by the FMLA, because of his or her disability; (3) has a serious health condition; and (4) requires care because of his or her serious health condition.  In light of this new interpretation letter, employers should review their current FMLA policies and practices, and make any necessary changes.

* Wage & Hour Division Administrator's Interpretation 2013-1 (Jan. 14, 2013).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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